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DOCUMENT: ABOR_SOV.TXT
A B O R I G I N A L R I G H T S A N D
T H E S O V E R E I G N T Y O F
C O U N T R I E S
(including a case study of
the Canadian Arctic)
June, 1982
Marc Denhez
Inuit Tapirisat of
Canada
Table of Contents
Part I. Introduction
Part II. General Observations on Laws and Peoples
A. Legal Origins
B. Effect on Boundary Claims
C. Relationship between Aboriginal Rights and a
Country's Sovereignty
Part III. Summary of Basic Principles
Part IV. Case Study; Canadian Arctic Waters
A. General
B. Government Enactments; The Arctic Islands Game Preserve
C. The Arctic Waters Pollution Prevention Act
D. Jurisprudence and Offshore Rights
E. Legal Dilemmas and Solutions
F. "Land Claims" and the Offshore
G. Impact on Sovereignty
Part V. Conclusion
PART I - INTRODUCTION
The overwhelming majority of countries in the world have uncertain
boundaries.
The majority of countries claim sovereignty to areas which are
subject to challenge by other countries. Even among close allies, such as
Canada and the United States, there are disagreements over issues such as
maritime boundaries.
To increase the credibility of their sovereignty claims, countries
have often argued that their citizens used the territory in question.
Sometimes the citizens referred to were an "aboriginal" people such as
the peoples represented at this conference.
That could often create an awkward situation: on one hand, the
country's diplomats may have been arguing that the aboriginal people WERE
PART AND PARCEL of that country's boundary claims at the same time as the
government's lawyers argued that these people were NOT really part of the
country's legal system.
This paper will discuss the relationship between a country's
sovereignty and the position of its aboriginal peoples. The word
"sovereignty" is used here in the context of COUNTRIES, not of peoples. It
will be argued that in many cases, a country's claim to sovereignty over
a given area will be strengthened or weakened depending upon its approach
to aboriginal rights. The example of Canadian arctic waterways will be
used as a case study.
PART II - GENERAL OBSERVATION ON LAWS AND PEOPLES
A. LEGAL ORIGINS
Innumerable texts attempt to define the "origins of law". From a
purely practical standpoint, one can argue that a legal system originates
when certain CUSTOMS ARE ROUTINELY ENFORCEABLE by the community, or by
institutions established by the community for that purpose.(1)
In continental Europe, the situation was (until the nineteenth
century) comparable, despite the efforts of universities to standardize
law along the Raman model. Indeed, before Napoleon French law was divided
into systems which were even named "COUTUMES" (customs) - The Quebec
Civil Code of 1866 was, first and foremost, a codification of one such
system called the COUTUME DE PARIS, i.e. the "Custom of Paris".
Whose customs are enforceable? It is not true that the customs of
the predominant ethnic group were necessarily the only customs which were
enforced by a legal system; in fact, the history of European legal
systems (which are the basis of laws in most of the world's countries)
indicates that these systems often went out of their way to accommodate
the customs of non-dominant groups.(2)
1. Sir William Blackstone described custom in these terms;
'Whence it is that in our law the goodness of a custom
depends upon its having been used time out of mind.... This
it is that gives it its weight and authority: and of this
nature are the maxims and customs which compose the common
law, or LEX NON SCRIPTA (unwritten law), of this kingdom.
"BLACKSTONE'S COMMENTARIES, Sweet and Maxell, 1929 p.67.
Jessel M.R. described custom as "local common law... Local
common law is the law of the country (i.e. particular place)
as it existed before the time of legal memory," HAMMERTON v.
HONEY, 24 W.R. 603. In the United States there is also
judicial recognition of "usage acquiring force of law": see
CORPUS JURIS SECUNDUM, Vol. 10A p.536ff.
2. As early as 1066, William the Conqueror enacted that
traditional Anglo-Saxon law would continue to apply except
where specifically superseded. To this very day, non-
conforming legal systems continue to be applicable in
various parts of the U.K., such as the Isle of Man or the
Channel Islands.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
In continental Europe (until the nineteenth century), the situation
was not appreciably different, e.g. as witnesses by the different
"coutumes" across France.
How could one determine whether a people's customs were enforceable
or not by the country's legal system? Domination was not the criterion,
Instead, it is arguable that the deciding factor was whether a people was
considered part of the mainstream of the country. If a people was
considered an integral part of the country's population, then its customs
usually became enforceable (in some way or another) under the country's
legal system. If that people were utterly peripheral to the mainstream,
then its customs were usually disregarded by the prevailing legal system.
This would explain historically, for example, why a country like the U.K.
tolerated radically different customary rules in the County of Kent(3),
but not in Wales(4): the former was perceived as part of the historical
mainstream, whereas the latter (acquired by conquest) was not,
3. Kent was not ethnically identical to the other areas of
England: its origins were not Anglo-Saxon, but Jute. The
most important legal rule of all in earlier times, i.e, the
inheritance of land, operated differently in Kent: instead
of land being inherited by the eldest son, it was inherited
by children equally. Elsewhere in England, a custom called
"burgage" existed in various communities: land was inherited
by the youngest son.
4. The case of Wales was specifically dealt with by statute
during the reign of Edward I.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
During the centuries of colonial expansion, various European courts
had to deal again with the question of whose customs they would respect
and whose customs they would ignore. This caused much misery to the
judicial mind.(5) After some 170 years of uncertainty, the Common Law
finally developed a theory which drew distinctions depending on whether
the colony had been acquired by "conquest" or "settlement": that
criterion determined whose customs would be enforceable.
That legal approach worked efficiently when a case was clear, e.g.
when Britain defeated the French at Quebec, or where Englishmen settled
uninhabited territories. However, that approach caused great difficulty
when an area was appropriated neither by clear.cut conquest nor by
settlement, but rather by gradual encroachment.
As a result, legal writers and courts have had to resort to an
assortment of legal fictions and esoteric theories to explain how a given
territory falls into one category or the other. It has been argued that
these various stratagems usually lead to the same conclusion; courts
eventually wind up treating agrarian societies as part of the mainstream,
and give effect to their laws and customs; judges have had much greater
difficulty in taking hunting societies seriously, and hence have not
treated the latter's rules as part of the enforceable mainstream.(6)
5. A thorough analysis of the Common Law cases is found in
Geoffrey S. Lester's INUIT TERRITORIAL RIGHTS IN THE N.W.T.
Doctoral thesis in four volumes, York University, 1981.
6. This argument is presented forcefully by Lester in
"Primitivism versus Civilization, OUR FOOTPRINTS ARE
EVERYWHERE. Labrador Inuit Association, Nain, 1977. P.351 et
seq.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
What has this meant for "aboriginal rights"? Aboriginal rights,
are, after all, the rights inherited under an aboriginal legal system,
Where the aboriginal population was perceived as part of a country's
mainstream (because it was numerous, well organised, an ally in warfare
or for other reasons), there was less judicial reluctance to recognize
the aboriginal legal system and the rights flowing from it.(7) Where the
population was perceived as peripheral (e.g. where Canada considered its
"two founding nations"to be English and French), the prospects for
judicial recognition of aboriginal rights were much less promising.
The conclusion is therefore as follows. If one wants to know
whether a country treats a people as part of the mainstream or part of
the periphery of national life, the most obvious indicator is the legal
treatment of aboriginal rights. If the rights inherited under an
aboriginal legal system (particularly land rights) are respected in a
country's laws and in its courts, then that is a good indication that the
aboriginal group is perceived as an integral part of the country and
national life. If those aboriginal rights are not recognized, then that
suggests that the aboriginal group is not considered (by that country) as
a true component of the national homeland and the country's historical
development.
7. That was, for example, the case of various, African peoples;
see AMODU TIJANI v. SECRETARY, SOUTHERN NIGERIA (1921) 2
A.C. 399, and particularly RE SOUTHERN RHODESIA (1919) A.C.
211.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
B - EFFECT ON BOUNDARY CLAIMS
As mentioned earlier, the vast majority of the world's countries
have claims on each other's lands or waters, or which are otherwise under
challenge.
There are various ways in which those claims can be consolidated.
One is military appropriation, sometimes called conquest. Recent
examples, dealing with appropriations of both lands(8) and waterways(9),
have been noticeably unsuccessful, and risk creating problems in the
international community.(10) Indeed, even conquests of centuries past
continue to be challenged today; and any country whose claim to
sovereignty is based upon military occupation - even dating back a
century or more - can find itself challenged by competing claims.(11)
The most reliable method for a country to maintain its claim to
sovereignty in an area is for that area to be historically occupied by a
people which is considered part of the national mainstream. Such areas
are usually perceived as integral components of a country's "homeland."
The same principle has been extended to waters: international law has
recognized that a country can have "historic title" to an area beyond its
normal territorial waters if the area has been traditionally the object
of "effective occupation" by the citizens of that country.(12)
8. As in the Argentine in the Falkland Islands
9. As in the Iraqi action for the Shatt al-Arab waterway
bordering on Iran.
10. The Charter of the United Nations distinctly condemns this
method.
11. This is the case, for example, of South American countries
which never accepted the outcome of the Guerra del Pacifico
and the Guerra del Confederacion Peru-Boliviana of 1879.
12. This principle has been recognized at least since the
beginning of the century: see e.g. HALL'S INTERNATIONAL LAW,
8th ed. p.193.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
It is therefore apparent that it is in a country's interest, when
asserting sovereignty in an area, to produce evidence that the area is
occupied by people who are an integral part of the national mainstream.
It is these people who, so to speak, carry the nationality of the country
to the area and who "bind" it to the "homeland".
C - RELATIONSHIP BETWEEN ABORIGINAL RIGHTS AND A COUNTRY'S SOVEREIGNTY.
Many countries attempt to play both sides of the fence: they argue
that their aboriginal peoples are not part of the national mainstream for
domestic legal purposes (and hence aboriginal rights under their
customary law are unenforceable), but that these same peoples are part of
the national mainstream for international legal purposes (and hence can
be used as evidence of the country's historical occupation of an area).
That game has its limits. It will probably work within the domestic
courts of a country, because these courts are usually unauthorized to
challenge the boundary claims of their own country, whether the latter
are logical or not.(13) However, there is no reason why courts of other
countries, or indeed the international community generally, should take a
similar position.
In order to develop a fully credible position, a country must make
a choice. It must decide whether to portray its aboriginal peoples as
being integral parts of the national mainstream, or portray them as being
peripheral to the life of the homeland. If it portrays them as part of
the mainstream, it may be sacrificing some of its position in domestic
litigation (over aboriginal rights) in return for a stronger case (for
sovereignty) in the international community.
13. This is based upon the so-called "Act of State" doctrine,
which forbids most courts from reviewing the legality of
unilateral national moves which have international
consequences (e.g. wars, occupations, assertions of
sovereignty etc.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
This exercise is usually in the national self-interest. Although
the acknowledgement of aboriginal rights occasionally means that a
country must make commitments to its aboriginal peoples, these benefits
accrue to citizens of the country and may even be a component of its
prosperity. This is immeasurably less costly than a challenge to the
country's sovereignty can be, in which case it is foreigners who have
everything to gain and nothing to lose.
Not all countries, however, see matters in this light. There are
some countries whose governments are so accustomed to thinking of
aboriginal peoples as peripheral that it never even occurs to them that
aboriginal peoples are citizens whose well-being can be consistent with
the national interest. These countries would tacitly prefer to take their
chances with the international community rather than making any
admissions concerning the status of their own aboriginal citizens.(14)
That attitude is potentially hazardous for the country involved.
14. Overtones of that position are sometimes seen in Canadian
documents. A case in point was the Governor General's
proclamation commemorating the 100th anniversary of Canadian
sovereignty in the Arctic Archipelago. The document re-
asserted Canadian claims to waterways, claims which are the
subject of some international controversy. The preamble
recited the grounds for Canadian claims, including (in one
draft version) the fact that Canadian Inuit had "used and
occupied these lands and waters since time immemorial.
However, the draft was intercepted and amended, to state
only that Inuit "frequented" the area. The change not only
made the Arctic sound like a pub, but was also inconsistent
with the terminology of international law. It presumably
reflected a greater fear, among some officials, of admitting
the presence of Canadian Inuit than of undercutting the very
basis of Canadian claims to sovereignty.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
PART III - SUMMARY OF BASIC PRINCIPLES
A country treats an aboriginal people as part of its historical and
current mainstream, or else it treats the people as part of the
periphery.
If that people is treated as part of the mainstream, then the areas
occupied by that people are part of the historical "homeland" of the
country. The customary laws of that people also have a place in the legal
system of the country; accordingly, the rights under that customary law
are enforceable in the country's courts, as being part of the historical
mainstream of the country's juridical evolution.
If that people is treated as part of the periphery, then its
customary laws will probably not be enforceable, nor will any rights
under those customary laws. By the same token, the areas occupied by this
people cannot be considered part of the historical homeland of the
country. Instead, those areas will be perceived as having been conquered
or appropriated by legal fiction, neither of which are necessarily
binding upon the international community. As a result, the country will
not be in as strong a position to maintain its sovereignty claims if
those claims are challenged,
PART IV - CASE STUDY: CANADIAN ARCTIC WATERS
A. GENERAL
This discussion will not concentrate on "moral" or "political"
rights, but rather those which could be enforced in a Canadian Court of
law.(15)
The legal rights of Inuit of offshore areas stem from two main
bodies of law:
1. Government enactments; and
2. Jurisprudence on aboriginal rights.
15. This case study was presented at McGill University at the
Sikumiut Workshop (April, 1982) held by the Centre for
Northern Studies. The"proceedings of that conference are
scheduled for publication in 1982.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
B. GOVERNMENT ENACTMENTS: THE ARCTIC ISLANDS GAME PRESERVE
In the early part of the Century, Canada enacted sweeping
provisions which were designed not only to serve Inuit interests, but
also Canadian sovereignty and the interests of conservation.
The degree to which Inuit interests were intertwined with the
sovereignty issue is seen in the chronology of events leading to these
provisions.
As late as 1918, there was no statute, regulation or Order in
Council which clearly defined Canada's boundaries in the Arctic.(16)
Unofficially, the Sector Theory, (which advocates Canadian sovereignty
right up to the Pole) had been advanced in the Senate(17) and in the
Arctic itself (18) a decade earlier; and by the 1920's, it was being
advanced officially by Ministers of the Crown.(19)
16. E.G, see Order in Council P.C. No. 655 (March 16, 1918),
which defines the District of Franklin simply as "that
portion of the Northwest Territories not included in the
provisional Districts of Mackenzie and Keewatin."
17. See speech of Senator Pascal Poirier of Feb. 20, 1907.
18. Captain Joseph Bernier's expedition made this claim on a
memorial at Melville Island, July 1, 1909. For further
commentary, see Canada's Arctic Archipelago" by Gordon
Smith, NORTH NORD, Summer 1980, pp. 18-20.
19. Eg. the Minister of the Interiors speech to the House of
Commons, 1925 HANSARD p. 4093. A detailed description of the
events leading up to this is found, among other places, in
NATIVE RIGHTS IN CANADA, CUMMING AND MICKENBURG, eds. 2nd
ed., General Publishing, Toronto 1972. pp. 150-4.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
The Arctic Islands Game Preserve (AIGP) was intended to serve both
the cause of sovereignty and the cause of protecting Inuit game(20); and
that dual purpose was clearly perceived by both Ministers(21) and other
public officials(22)
The Preserve, as established in 1926,(23) imposed the status of
native "game preserve" on most of the area north of Hudson Bay and Hudson
Strait. In 1926, the Preserve included only "lands". However, the
boundaries to "lands" was deleted.(24) Thereafter (after some
adjustments) the definition of the preserve's boundaries coincided
approximately with the Sector Theory, and hence encompassed land and sea.
It eventually covered almost all northern waters (except most of Hudson
Bay, Hudson Strait, and the southern Beaufort).
20. This is documented by Constance Hunt in "The
Development and Decline of Northern Conservation
Reserves", CONTACT: ARCTIC LAND USE ISSUES, Nov. 1976
See also "Inuit Hunting Rights in the NWT," by Cumming
and Aalto, (1974) Sask. L.R. 251 at pp. 277-280.
21. Per Minister of the Interior Stewart: "We are quietly
and unassumingly trying to maintain our right in the
territory... We must protect the native population."
HANSARD 1925 p.4093.
22. Commissioner of the N.W.T. and the Yukon O.S. Finnie:
"The creation of this Preserve and its appearance
on our maps also has a bearing on British
Sovereignty in the North and serves to notify the
world-at-large that an area between the 60th and
141st meridians of longitude, right up to the
Pole, is owned and occupied by Canada."
Under-Secretary of State for External Affairs O.D,
Skelton:
"Aside from its immediate purpose, this Preserve
should prove of distinct value as an assertion of
our sovereignty in the North, and it is all the
more valuable because apparently arising as a
normal active police administration."
Quoted by Constance Hunt, OP. CIT.
23. P.C. 1146, July 19, 1926; Canada Gazette July 31, 1926. The
authority for game preserves was found in the Northwest Game
Act, R.S.C, 1906c. 151, as amended 7-8 Geo. 5, c.36.
24. P.C. 807 May 15; see Canada Gazette Vol. 62 p.4021
25. An account is in Hunt, OP. CIT. By 1945, the following
description was found in the CANADA GAZETTE (p. 4345):
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Certain activities were prohibited in the AIGP, notably:
- Non-native hunting, trapping, trading or
trafficking(26)
- Entry by any "corporations or newcomers"(27)
These activities could, however, take place upon authorization of
the Commissioner of the NWT. However, such authorization would issue
only so long as it has a "purpose not incompatible with the interests of
natives in such preserve."(28)
These stringent measures served their desired purpose in 1930, when
the AIGP was successfully invoked to counter Norwegian Claims(29) for
special rights in the Sverdrup Islands and Basin which would have
compromised Canadian sovereignty.(30) Norway dropped its claims on
learning that:
26. An exception was made for prospectors, who could hunt for
food. A later exception was also made to protect rights of
non-native trappers already living in the area: see P.C.
6115, Sept. 20, 1945, s 49 A.
27. S 6 (B).
28. S 6 (B). As mentioned by Hunt, no guidelines on this subject
interpreted this requirement. In 1929, the Minister took
over (from the commissioner) the task of issuing
authorizations to anyone"to enter any native preserve."
Again,there was a condition that the entry be fora "purpose
not opposed to the interests of the natives." P.C. 807 May
15, S. 41.
29. Otto Sverdrup had claimed some 100,000 square miles of the
central High Arctic for the Kingdom of Norway in 1900 and
1902. The Norwegian Government remained ambivalent toward
sovereignty claims, but insisted on the right to carry on
various activities (see Smith, OP. CIT: pp.14-15), By
Canadian sovereignty, as seen in his speech to the House of
Commons of March 31, 1930, HANSARD (1930) p. 1092.
30. Norway insisted that Canada impose no "obstacles to
Norwegian fishing, hunting or industrial and trading
activities." Diplomatic Note of Aug, 8, 1930. See DOMINION
OF CANADA TREATY SERIES, 1930, No. 17
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
"it is the established policy of the Government of
Canada, as set forth in an Order in Council of July 19,
1926, and subsequent Orders, to protect the Arctic
areas as hunting and trapping preserves for the sole
use of the aboriginal population of the Northwest
Territories."(31)
In reaching final agreement, Canada and Norway provided:
That should these regulations be altered in the future, the
Canadian Government will treat in the most friendly manner any
application from Norwegians for facilities to carry on fishing,
hunting, industrial or trading activities in the areas which
the Norwegian Government's recognition comprises.(32)
31. Diplomatic Note of Nov. 5, 1930. See Treaty Series above.
The note went on to explain that this was "in order to avert
the danger of want and starvation through the exploitation
of the wild life by white hunters and traders. Except with
the per. mission of the commissioner of the Northwest
Territories, no person other than native Indians or Eskimos
is allowed to hunt, trap, trade or traffic for any purpose
whatsoever in a large area of the mainland and in the whole
Arctic island area, with the exception of the southern
portion of Baffin Island. It is further provided that no
person may hunt or kill or traffic in the skins of the musk-
ox, buffalo, wapiti, or elk. These prohibitions apply to all
persons, including Canadian nationals. Should, however, the
regulations be altered at any time in the future, His
Majesty's Government in Canada would treat with the most
friendly consideration any application by Norwegians to
share in any fishing, hunting, industrial, or trading
activities in the areas which the recognition comprises."
32. Diplomatic Note of Nov. 5, 1930. Norway stated:
The Norwegian Government has noted that it is a
leading principle in the policy of the Canadian
Government to preserve the Arctic regions as
hunting and trapping preserves for the sole use of
the aboriginal population of the Northwest
Territories, in order to prevent their being in
want as a consequence of the exploitation of the
wild life by white hunters and trappers and that
they have drawn up more definite regulations to
this end by means of several Orders in Council.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
In fact, a private challenge to the agreement (which is a treaty)(33)
took place shortly after World War II, to little avail;(34) but interest
has continued. (35)
In 1948, the federal government transferred(36) power over the
"preservation of game" to the Northwest Territories Territorial
Council.(37) The Council abolished almost all preserves; the AIGP was
abolished in 1966, over the objections of the Canadian Wildlife Service.
There was no mention of sovereignty, nor any indication that the
Councilors had addressed their minds to that issue.(39)
Did that vote indeed have the effect of abolishing the game
preserve?(40) It has been argued that although the GNWT was empowered to
legislate for "preservation of game", the abolition of the Preserve did
the reverse and was beyond the powers of the territorial Council.(41)
That argument is
33. The argument that the Canada-Norway agreement, (which
appears in the Dominion of Canada Treaty Series) is indeed a
treaty is outlined by P. Cumming and K, Aalto in "Inuit
Hunting Rights in the Northwest territories," (1974) 38
Sask.L.Rev. 252 at 286.
34. It is referred to in Smith, OP. CIT. p. 15
35. See, for example, an article exploring possible subsisting
Norwegian claims by G. Henriksen, "Norske Rettigheter 1 Det
Danadiske Arktis?" ONSDOG AFTEN MENPOFLEN, Sept. 16, 1970.
36. 11 and 12 Geo. 6 c., 20's. 1
37. The Federal NORTHWEST GAME ACT was repealed as part of the
transfer 11-12 Geo. 6 c. 20's. 3(1). It was replaced a few
months later by a Territorial GAME ORDINANCE: NWT Ordinances
1949c.12. This Ordinance reenacted the Game Preserves.
38. (Missing note in original text) The Council was mostly non-
elected and overwhelmingly non-active.
39. A chronological account of the abolition, including the
views of government spokesmen, is found in Hunt OP. CIT. pp.
52-56.
40. In order to be effective, the abolition must have been
within the jurisdiction of the Council as defined in the
Northwest Territories Act. In the case at hand, that
jurisdiction could stem from either the Council's power
(i) to enact provisions of a merely local or private nature
(s. 13x)
(ii) to enact provisions for the preservation of game.
(s. 13q)
41. Hunt advances this argument, OP. CIT. pp. 66-68.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
debatable;(42) but on the other hand, the abolition clearly nullified the
exclusivity of native hunting rights, and to that extent, it may
conceivably be challenged as to its confiscatory results.(43) In short,
the status of the abolition remains open to doubt.
C. THE ARCTIC WATERS POLLUTION PREVENTION ACT
Since 1966, most statutes have omitted mention of Inuit rights
offshore except(44) the ARCTIC WATERS POLLUTION PREVENTION ACT,(45) which
states;
"Parliament at the same time recognizes and is determined to
fulfill its obligation to see that the natural resources of the
Canadian arctic are developed and exploited and the arctic
waters adjacent to the mainland and islands of the Canadian
arctic are navigated only in a manner that takes cognizance of
Canada's responsibility for the welfare of the Eskimo and other
inhabitants of the Canadian arctic and the preservation of the
peculiar ecological balance that now exists in the water, ice
and land areas of the Canadian arctic."
42. In the view of this writer it is unlikely that the courts
would interfere with provisions (which were passed bona
fides under a given head of power)? simply on the ground
that the provisions were inept or even retrogressive in
achieving their stated purpose. It would be necessary to
demonstrate that the provisions were either intended to
achieve purposes outside that head of power, had
consequences which did so, or constituted a wholescale
abdication of responsibility.
43. The question of "confiscation" is explored and advanced from
a number of standpoints by Cumming and Aalto, OP. CIT. at p.
312 et seq.
44. For example, the James Bay Agreement omitted the offshore.
The offshore around northern Quebec is technically within
the Northwest Territories, and has not been the object of
any aboriginal rights settlement.
45. R.S.C. 1970, 1st Supplement c. 2
46. See the preamble to the Act.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
D. JURISPRUDENCE AND OFFSHORE RIGHTS: GENERAL
"Aboriginal rights" are a recognized category of rights in Canadian
jurisprudence,(47) and (to the extent which they are existing) are
entrenched in the new constitution(48). In order for aboriginal rights to
exist in Inuit occupied areas, the following conditions must be met:
a) The Inuit must have possessed "an organized society",
b) The Inuit must have occupied the area;
c) The occupation must have been "to the exclusion of other
organized societies; and
d) The occupation must predate assertions of British
sovereignty.(49)
It was held that Inuit met those conditions.(50)
47. For a full analysis of this topic, see Geoffrey S. Lester's
INUIT TERRITORIAL RIGHTS IN THE NWT. Doctoral thesis in four
volumes, York University, 1981.
48. Constitution Act 1981, s. 35 (1)
49. These conditions are summarized by Mahoney J. in HAMLET OF
BAKEN LAKE et. al v. MINISTER OF INDIAN AFFAIRS et al (1980)
1 F.C. 518,
50. The case dealt with Inuit in the Keewatin; but aside from
the issue of Indian incursions (which were apparently non-
existent in the Arctic Archipelago) the other conditions
would be identical throughout most Inuit-occupied areas.
Mahoney J. ruled that:
a) "Aboriginal Inuit had an organized society;"
b) "To the extent the barrens lent themselves to human
occupation, the Inuit occupied them."
c) Most of the area had been to the exclusion of Indians;
d) The occupation predated British sovereignty.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
As a result, "an aboriginal title to that territory, carrying with
it the right freely to move about and hunt and fish over,(51) was vested
at common law in the Inuit."(52)
However, when applying this reasoning to the offshore, the
following question arises: Is it possible for the sea-ice to be the
object of an aboriginal title?
In order to determine whether a claim of aboriginal title can be
made to the seas and sea-ice, it is necessary to probe deeper into the
nature and legal origins of aboriginal title.
E. APPROACHES TO ABORIGINAL TITLE
The law pertaining to aboriginal title has been approached from
different perspectives by different authors and judges. In one view, this
part of the law stems from sixteenth century legal and judicial doctrines
which originated in Spain and which gradually gained acceptance in the
United States and Canada.(53) A second source of Native Rights is a
Canadian constitutional document, namely The Royal Proclamation of
1763.(54) The Proclamation, whose application to the High Arctic is
arguable,(55)
51. It is important to note that in the Baken Lake case, lawyers
for the Inuit scrupulously avoided the question of
PROPRIETARY interests and confined their assertions to
hunting and trapping rights. "The aboriginal title asserted
here encompasses only the rights to hunt and fish as their
ancestors did." Per Mahoney J.
52. Per Mahoney J.
53. A similar thrust is to be found in the Memorandum of Law
presented by the lawyers for the Inuit in the Baken Lake
Case. For a presentation of this viewpoint, see Cumming &
Mickenburg, OP. CIT.
54. R.S.C. 1970, Appendix p. 123. This is not an "Aboriginal
Title" in the strict sense, since its basis is in a
government EDICT.
55. The criterion has been whether the lands were "TERRA
INCOGNITA" (in 1973) or not: see Cumming & Mickenburg, OP.
CIT. p. 30. The Royal Proclamation was expected to apply
elsewhere than TERRA INCOGNITA. In the case of the eastern
Arctic, it is fairly obvious that the area was not terra
incognita in 1763 due to the extensive efforts at locating
the Northwest Passage. The Status of more westerly areas is
open to doubt. The most recent jurisprudence, which departs
significantly from earlier cases, in THE QUEEN v. SEC.
STATE. FOR FOREIGN AND COMMONWEALTH AFFAIR exparte INDIAN
ASSOC. OF ALBERTA et al (Jan. 28, 1982); Lord Denning's
judgement held (on a point that was not discussed by other
judges) that the Royal Proclamation applies to all of Canada -
even the areas which were TERRA INCOGNITA in 1763. The
judgement of Hall J. in SIGEAREAK EL-53 N. The Queen (1966)
S.C.R. 645 excluding Hudson Bay from the area covered by the
proclamation. Elsewhere note that Sisions J. ruled that the
Royal Proclamation is applicable to Inuit in R.V. Kogogolak
(1959) 28 W.W.R. 376.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
"reserves for the use of the (said natives)(56), all the Lands and
Territories not included within (Quebec and Florida), or within the
Limits of the Territory granted to the Hudson's Company...". Do those
"Lands and Territories"include the offshore? That point is arguable.(57)
It is perhaps more reliable, in discussing aboriginal claims in this
area, to refer back to basic principles of Common Law.(58)
56. The actual expression is "said Indians." This does not
exclude Inuit; see Brian Slatten's LAND RIGHTS OF INDIGENOUS
CANADIAN PEOPLES, University of Saskatchewan 1979, pp. 210-
212, 233-238, 244ff.
57. Application of the Proclamation to the offshore should
depend on whether the expression "Territories" (used in the
Proclamation) includes the seas and sea-ice. That precise
question was, in another context, answered in the
affirmative in one court case: R.V. TOOTALIK E4-321, 71
W.W.R. 435, overturned on other grounds 74 W.W.R. 740. The
question was whether the same word "Territories", in the
Northwest Territories Act, included seas and sea-ice. Per
Morrow J.:
"When (the Northwest Territories Act) defines 'Territories'
to include 'all that part of Canada north of the sixtieth
Parallel of North Latitude' does it purport to include the
waters and, where appropriate the sea-ice in between the
islands or the continent of the islands or does it only
embrace the land area itself?... I conclude therefore that
the definition in no wise restricts 'Territories' to land
only as distinct from 'and' in the larger sense." See also
B.P. EXPLORATIONS CO. v. HUNT (1980) 23 Alberta Reports 271.
Furthermore, the proclamation refers to both "lands and
Territories." The above interpretation follows the basic
rule of statutory interpretation that different words in an
enactment have different meaning. If "Territories" meant
"lands" then reference to both in the Proclamation would be
"suplusage" (i.e. redundant). "Territories" therefore must
arguably apply to something distinct from "lands --- in
which case it would be plausible to apply the Proclamation
offshore.
58. A wide-ranging description of these rules is found in Brian
Slattery's Land Rights of Indigenous Canadian Peoples,
University of Saskatchewan, 1979. An even more meticulously
documented description is found in Lester, OP. CIT.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Before the European arrival, the aboriginal populations (including
the Inuit) possessed systems of customary law. Those systems defined
obligations and rights, including the private rights which various
collectivities had in the areas in question.(59) When the Crown asserted
sovereignty over these areas, did it necessarily abolish these systems
and (by the same token) any rights which those systems recognized
pertaining to lands and waterways?
The Anglo-Canadian legal system distinguishes between sovereignty
and title.(60) The two concepts are distinct; so when the Crown asserted
sovereignty, it does not necessarily follow that the Crown was abolishing
all other rights (property, hunting etc.) and expropriating the area as
its private domain.(61)
59. The fact that Inuit possessed such a system has been
outlined in various works including INUIT LAND USE &
OCCUPANCY PROJECT, Milton Freeman, ed, Dept. of Supply &
Services, 1976; and Nobert Rouldand's LES MODES JURIDIQUE DE
SOLUTION DES CONFLITS CHEZ LES INUIT, Etudes Inuit,
Universite Laval, 1979. The existence of the system was
recognized by Mahoney J. in the Baker Lake Case, mentioned
earlier.
60. The legal expressions are, respectively, "Imperium and
"Dominium."
61. Otherwise, as Lester points out, all the inhabitants of an
area passing to the Crown would have become trespassers - a
result which is obviously absurd and which has been
recognized as such in jurisprudence.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Rights under the pre-existing legal system could have become
unenforceable in several ways. For example, if the Crown had acquired the
area by conquest, (e.g. New France) the pre-existing rights would have
been unenforceable unless the Crown re-introduced (or "recognized")
them.(62) None of those conditions existed in Northern Canada.(63)
On the contrary, the assertion of sovereignty rendered the Inuit
British Subjects; and the Crown was bound by law not to take or grant
rights to a subject except with a written record. No written record
appropriates (to the Crown) Inuit rights in the North.(64)
In the absence of any edict or doctrine to abolish the Inuit
customary law, that customary law (and rights flowing under it) continues
in the ordinary way until changed by statute.(65)
What is that customary law? It is not necessary that it be already
spelled out: in order to be enforceable,(66) it is sufficient that the
customary rules should be "discoverable to (lawyers) by evidence."(67)
62. This is the thinking which underlies American jurisprudence
in the thirteen colonies and which, as Lester points out,
has been mistakenly applied in some cases where no conquest
took place.
63. Lester produces four volumes of evidence and judicial
pronouncements to substantiate this point.
64. The Hudson Bay Company Charter, for example, does not do so;
see Lester Chapters XX, XXI.
65. The population can, however, agree to alienate its lands and
rights to the Crown, as long as it is done by written
record. Other means of change are improper: for example, the
Crown cannot acquire areas by "conquest" after sovereignty
has already been asserted, since the Crown cannot legally
"conquer" people who have already become technical British
subjects.
66. Enforceability is demonstrated by Lester pp. 150-155,
67. Lester, OP. CIT. 1428. Authorities for this proposition are
cited pp. 822-831, 884-896.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Nor is it necessary for the subsisting system of customary law to
conform to British Common Law categorizations.(68)
The expression "aboriginal rights" therefore refers, very simply,
to that body of rights which were vested in peoples (prior to the
European arrival) under their own legal systems, which were not
interrupted by any statute subsequent to the European arrival, and hence
which continue to be enforceable under the recognized principles of
continuity of law.
Are such rights recognizable offshore? That question can be
answered by reference to both principle and legal authorities.
In principle, if Inuit customary law recognized collective Inuit
rights in the offshore, that fact should be sufficient to vest an
aboriginal title in the offshore area. The pre-existing rules of
customary Inuit law in offshore areas have not been abolished by any
statute since the advent of Anglo-Canadian Sovereignty. Contrary to
popular belief, the Common Law itself has recognized rights of ownership
in offshore areas.(69) However, even if the Common Law had not
traditionally foreseen such rights, it would nevertheless be bound to
recognize them because the Common Law recognizes the enforceability of
aboriginal customary law even when the latter does not coincide with the
traditional Common Law.(70)
The second point is that for legal purposes, there is already
precedent for the proposition that the legal system on land can be
extended to sea-ice.
68. "Cramping the aboriginal LEX LOCI ("law of the place") into
a specific set of common law rights and relationships has
been proscribed by principle and authority." Lester, p.
1428.
69. The presumption that the seabed belongs to the Crown is
rebuttable by evidence: JARDINE v. SIMON, (1876) Tru. 1.
Under certain conditions, the seabed can be granted and
owned in fee simple: CAPITAL CITY CANNING v. ANGLO-BRITISH
COLUMBIA PACKING (1905) 2 W.L.R. 59. GAGE v. BATES (1858) 7
U.C.C.P. 116, BROWN v. REED (1874) 15 N.B.R. 206.
70. See footnote 68
That argument is being used by Alaskan Inuit in their claim
to Alaskan offshore. See Plaintiff's Memorandum in INUPIAT
COMMUNITY OF THE ARCTIC SLOPE EL AL. v. U.S.A. EL AL., U.S.
District Ct, Alaska No. A81-019., pp.24 et seq. The Alaskans
cite legal opinions from U.S. Attorneys General, e.g.:
"thus unless the rights which natives enjoyed from time
immemorial in waters and submerged lands of Alaska have
been modified under Russian or American sovereignty,
there must be held that the aboriginal rights of the
Indians continue in effect" (1821); and
"In the first place, it must be recognized that the
mere fact that common law does not recognize several
rights of fishery and ocean waters or rights in land
below the high water mark does not mean that such
rights were abolished by the extension of American
sovereignty over the waters in question. It is well
settled that Indians legal relations, established by
tribal laws or customs antedating American sovereignty
are unaffected by the common law" (1821).
And per Homes J. in CARTER v. HAWAII, 200 U.S. 255 (1906)
The right claimed is a right within certain metes and
bounds to set apart one species of fish to the owner's
sole use. A right of this sort is somewhat different
from those familiar to the common law but it seems to
be well known to Hawaii, and, if it is established,
there is no more theoretical difficulty in regarding it
as property and a vested right than there is regarding
any ordinary easement or profit a prendre as such. The
plaintiff's claim is not to be approached as if it were
something anomalous or monstrous, difficult to conceive
and more difficult to admit.
And per the Dept. of the Interior:
A careful study of the cases and statutes confirms...
that submerged lands in Alaska are susceptible to such
claims of aboriginal possession as were recognized by
the act of May 17, 1884, and by subsequent legislation
of the same tenor; that such rights, whatever they may
be, have not been destroyed by the course of
congressional legislation since 1884; whether such
rights have been abandoned and or otherwise
extinguished or whether they still exist as valid
rights today is entirely a question of fact to be
decided on the available evidence in each particular
case. It is the duty of this Department to respect
existing rights in disposing of the Federal public
domain. This is true whether the public domain is land
or water or a mixture of both, and whether the existing
rights were established under Spanish, Mexican,
Hawaiian, Danish, Choctaw or Tlingit law. It makes no
difference whether the evidence of such rights is found
in papers sealed and notarized or in custom and the
fact of possession, which is older than seals and
notaries.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Those precedents are in three areas:
a) In international law, it has been held on at least
one occasion that iced-over areas are "integrated"
to the land.(71)
b) For the purposes of territorial legislation, it
has been held that sea-ice is an "attribute of
land."(72)
c) It is recognized law in Canada that solid ice can
be owned and dealt with in a manner similar to the
land beneath it.(73)
There is therefore no overwhelming legal impediment of Inuit rights
in sea-ice, which would be analogous to Inuit rights on land. Such an
impediment would have occurred, of course, if the Crown had appropriated
the offshore for itself.
However, the assertion of sovereignty does not necessarily vest
ownership of areas in the Crown; and the same principle applies to the
offshore.(74)
71. That is the reason, for example, that the White Sea, in the
northern U.S.S.R., is generally regarded as internal waters
of the U.S.S.R.: see, e.g., Johnston "Canada's Title to,
Hudson Bay and Hudson Strait", 1934 BRITISH YEARBOOK OF
INTERNATIONAL LAW p. 4.
The rationale includes the fact that it is iced over
for most of year: "C'est une mer, mais si particuliere que,
durant les trois quarts de l'annee, elle s'agrege territoire
de la Russie, perdant ainsi son aspect international." Revue
generale de droit international public (1911) p. 98. ("It is
a sea, but so unusual that during three quarters of the
year, it is integrated to Russian territory, thereby losing
its international character)".
72. R. v. TOOTALIK E4-321 (1969) 71 W.W.R. 435 at 439, reversed
on other grounds 74 W.W.R. 740.
73. This is derived from the system of "water lots", which were
well known throughout Canada in the days of ice-cutting for
refrigeration. For authority see LAKE SIMCOE ICE AND COLD
STORAGE CO. v. MCDONALD (1901) S.C.R. 130, at p. 133.
74. RE OFFSHORE MINERAL RIGHTS OF BRITISH COLUMBIA (1967) S.C.R.
792.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
No statute has vested the arctic seas in the Crown either, as far as
property rights are concerned.(75) Since customary Inuit occupancy of the
off-shore has been approximately the same as Inuit occupancy of land, it
follows that Inuit aboriginal rights continue over the offshore and are
analogous to those on land.(76)
F. LEGAL DILEMMAS AND SOLUTIONS
In view of the existence of aboriginal rights in the offshore, the
following questions arise. First, what are the implications of those
rights? Second, how should the Canadian government and public formulate
future policy in light of that reality?
In answer to the first question, the foregoing analysis suggests
that "aboriginal rights" in the offshore are composed of the Inuit
customary rules of conduct, insofar as the latter have not been
distinctly superseded by statute. The Canadian courts would be empowered
to apply those rules, to the extent that the rules could be demonstrated
by evidence.(77)
75. Although the Hudson Bay Charter purported to convey the
offshore in Hudson Bay and Hudson Strait to the Hudson Bay
Company, it did not have the effect of transferring property
rights; see Lester OP. CIT. Chapters XX and XXI.
76. "The Inuit's possessory title (to the offshore) will prevail
against the claim of the Crown or its grantee, and the Crown
can only rebut the Inuit's claim to title by producing a
documentary or statutory title in its own hands." Geoffrey
Lester, evidence to the National Energy Board on the Arctic
Pilot Project, March 1982.
77. e.g. The expert testimony of Inuit elders, anthropologists
etc.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Since these rules have seldom been outlined in literature (and
never in Canadian courts), it is obvious that there are problems in
making forecasts on how Inuit aboriginal rights would affect questions
such as the legality of mega projects, etc. In order to find a solution
to this problem (and to avoid laborious litigation in the process), the
federal government undertook (in 1973) to "settle" aboriginal rights.
That commitment presumably extended, at first, to lands only.
However, in 1980 the federal government specifically undertook to deal
with claims in the offshore. That commitment was stated to the House of
Commons by the then Parliamentary Secretary to the Minister of DIAND:
The Minister of Indian and Northern Affairs and
his officials are now negotiating a variety of
claims made by groups which represent the native
people of Canada. Several of these claims concern
the control of the territories now governed and
regulated under the Arctic Waters Pollution
Prevention Act. For instance, the Inuit have
always based the whole of their society and
economy on the harvesting of wildlife resources
which depend directly and indirectly on the Arctic
waters, and any regulation concerning these
resources must therefore be considered relevant to
the final legal settlement of the claims presented
by the Inuit to the government.(78)
The Inuit and the government are currently involved in
negotiations. In order to discuss the evolution of Inuit rights in the
offshore, it is important to look at that negotiating process.
78. M. Bernard Loiselle, HANSARD July 11, 1980.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
D. "LAND CLAIMS" AND THE OFFSHORE
From the federal standpoint, the negotiating process was originally
intended to "extinguish" aboriginal title in return for cash and/or
other, specified rights.(79) The term "extinguishment" has, however, been
used much less frequently in recent discussions.
From the Inuit standpoint, "extinguishment" is not what is taking
place. Instead, the Inuit leadership viewed the exercise as a means to
translate pre-existing but unspecified legal rights into a more modern
context.(80)
In essence, "the real objective of these discussions must be to
provide a solid and acceptable blueprint for the future of the
North."(81)
Seen in that context, the negotiations provide an extremely
important opportunity to overcome some of the legal and administrative
fictions and anachronisms, and to replace them with a more workable and
scientific approach based upon the realities of the North. The offshore
is a notable example.
79. For a brief chronology, see Graham & McAllister, THE INUIT
LAND CLAIM CONSTITUTIONAL DEVELOPMENT, AND LOCAL GOVERNMENT
REFORM IN THE NWT Queen's University Institute of Local
Government, 1981.
80. "The nature of this exercise is for the various parties to
agree on a definition of their respective rights in certain
key areas. Neither side is abolishing its rights; it is
clarifying them, in an area which currently suffers from a
lack of clarity." PARNAGUJUK, Inuit Tapirisat of Canada,
1980. p.9.
81. PARNAGUJUK, p. 2.
See also "Big Step by Inuit on Land Claims", Globe & Mail,
Feb. 5, 1981, p. 7.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
It is also clear that a cooperative system of planning and
administration for the arctic offshore would be consistent with the
national policy of providing a just settlement of aboriginal claims.
In particular, it would provide a mechanism for the orderly
settlement of disputes and the development of consensus positions on an
area which the Inuit consider absolutely vital. That, in turn, should
minimize the prospect of laborious lawsuits over the assertion of
aboriginal title in these offshore areas. That result can only be
beneficial for national policy.
It is a basic necessity, according to ITC, that local expertise be
used in every phase of the planning process. This is a necessity not only
because local Inuit are most intimately familiar with the areas in
question (and hence have a most important contribution to make), but also
because they are most directly affected by policy decisions. Both the
credibility and the fairness of that process depend on Inuit
participation. The Land Claims proposals will recommend an orderly and
efficient way for that participation to take place, and this can only be
beneficial for the process itself.
G. IMPACT OF SOVEREIGNTY
The impact of Inuit rights on Canada's assertions of sovereignty in
arctic waters is likely to be highly significant. Until now, those
assertions have run into a certain amount of opposition, notably from the
United States, If Inuit rights contribute to overcoming that opposition,
it is arguable that this benefit alone should be sufficient to prompt
strong federal support for an expeditious resolution of Inuit claims.
No SINGLE argument or fact is likely to be DECISIVE in resolving
the controversy over arctic waterways in favour of Canadian sovereignty.
However, the foregoing information gives rise to a NUMBER of arguments
which can be added to Canada's position; collectively, they may go a long
way to substantiating Canadian sovereignty.
Those points can be summarized as follows:
First, one must consider what the foregoing information does to a
Canadian claim to "historical title".(82)
It is clear that Canadian residents (i.e. the Canadian Inuit) have
been treating the offshore as part of their hunting area since time
immemorial is equally clear that if the Canadian government recognizes
this occupancy (and translates the aboriginal rights flowing from this
occupancy into a settlement with Inuit), Canada will be officially
asserting that its nationals have been conducting an "effective
occupation" of these areas. In international law, it has long been
recognized that such occupation can be a basis for a country's claim to
sovereignty.(83)
The strength of that argument is increased when one considers the
fact that aboriginal occupancy gives rise to rights which are enforceable
in the courts. If this occupancy were treated (for legal purposes) as
being so superficial and flimsy that it gave rise to no legal rights,
then it would be easier for other countries to attempt to discount its
impact on international law; but that occupancy becomes somewhat more
difficult to discount when one recognizes that it vests legal rights
enforceable in a court of Common Law (for which countries such as the
U.S.A. share a certain respect).
82. Canada is already expected to have an "historical" title to
Hudson Bay and Hudson Strait. This title stems largely from
the assertion that these bodies of water were given to the
Hudson Bay Company in 1670, which thereafter transferred
them to Canada in 1870. This transfer was followed by
various administrative acts whereby Canada assumed
sovereignty; a decisive feature was also the acquiescence of
other countries. See "Canada's Title to Hudson Bay and
Hudson Strait", by V.K. Johnston, BRITISH YEARBOOK OF
INTERNATIONAL LAW XV (1934) pp. 1-20. However, the current
most pressing concern is in the Northwest Passage, which was
outside that area.
83. See footnote 12
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
A further (if relatively peripheral) feature of the "historical"
argument is that the foregoing information indicates a much longer period
of functional jurisdiction than is usually assumed. Canada's day-to-day
administration of waters in the Arctic Archipelago did not begin with the
enactment of the ARCTIC WATERS POLLUTION PREVENTION ACT in 1970; it dates
at least as far back as the expansion of the Arctic Islands Game
Preserve(84) in 1929.(85) The AIGP further appears to have obtained
(with the exception of certain Norwegian comments) the acquiescence of
the international community.(86)
Above and beyond those features, there are other ways in which
Inuit rights can benefit Canada's position on sovereignty - particularly
pursuant to a comprehensive settlement as in now being negotiated.
Part of the way in which countries can assert sovereignty is by
exercising "functional jurisdiction" over an area in the manner of
"business-as-usual": if more and more administrative measures are applied
over time, it becomes increasingly awkward for other countries to
challenge that jurisdiction. Furthermore, if this "incremental approach"
is applied over several decades, it can contribute to a claim to
"historical title". It is clear that a comprehensive settlement with the
Inuit, binding on the offshore, would be a significant addition to these
"LAYERS" of administration, and hence would contribute to Canada's
"functional jurisdiction". That addition would be particularly
significant if, as Inuit have proposed, it includes the setting up of a
comprehensive and co-operative PLANNING PROCESS for the offshore and
costal zones.
As mentioned earlier, a sophisticated system for environmental
planning (as urged by Inuit) would also add to the specificity of the
ARCTIC WATERS POLLUTION PREVENTION ACT, and thus add credibility to that
unilateral declaration.
84. The Arctic Islands Game Preserve, enacted in 1926 and
expanded in 1929 and following years, purportedly applied to
almost the entire Canadian arctic Sector. It also met the
acquiescence of the international community, with the
partial exception of Norway. Norway was prepared to
recognize the Game Preserve, but stated explicitly that this
recognition was not based upon the Sector Theory.
85. Indeed, legal purists might argue that once one acknowledges
the existence of Inuit customary law and its application to
arctic waterways (in the context of aboriginal rights), an
embryonic form of "functional jurisdiction" has been
exercised by the local population for centuries. It is
unlikely, however, that this argument would have more than
academic interest.
86. Acquiescence can play an important role in the issue of
assertions of sovereignty.
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Finally, the follow-up on Inuit rights (in a settlement) would
reinstitute, to a partial extent, commitments which Canada had made to
Inuit under the Arctic Islands Game Preserve, and which were the decisive
factor in the Canada-Norway agreement of 1930.(87)
The primary mechanism currently under consideration by federal
officials to assert "functional jurisdiction" is the construction of an
ice-breaking fleet, at a cost of unknown millions of dollars. The
relative merit of that technique, in asserting Canadian sovereignty, is
open to question. At present, the claim by shipping nations (notably the
United States) that the Northwest Passage is an international strait is
weakened by the fact that ice makes the Passage almost unnavigable. By
turning the area into a navigable waterway, rather than an ice-bound
extension of land, Canada would contribute to the argument of the
shipping nations rather than undercutting it; in fact, Canada would be
proving their point. From a sovereignty standpoint, such a move would
need to be approached with extreme caution. It is clear that if Canada is
committed to this course, it would be prudent to institute beforehand a
series of measures affirming Canadian sovereignty (e.g. recognition of
Inuit rights and a planning system) to compensate for any erosion of
sovereignty which the opening of this waterway could cause.(88)
87. This is not to suggest that Norway could or would press
claims in the Sverdrup Basin, now that the area is no longer
"reserved" for native use as it was in 1930. However,
Canada's "flip-flop" on the status of the area is not the
most edifying example of Canadian adherence to what is
written in its treaties.
88. This argument has been made by a variety of observers. For
example, the following appears in the GLOBE & MAIL, May 27,
1981: "Canada could firmly establish sovereignty over the
disputed Northwest Passage by recognizing the Inuit land
claims in the Lancaster Sound region, a working group on the
region's future was told yesterday. Donald Gamble, director
of policy studies for the Canadian Arctic Resources
Committee, said that if Canada settles the land claims on
the basis of the Inuit use of permanent ice shelves in the
area, 'it would, in effect, give Canada complete sovereignty
and jurisdictional control of the Arctic Islands area'."
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
PART V. CONCLUSION
It is the stated objective of Inuit (through their national
organization), to retain their identity, but also to seek "full
participation in, and sense of belonging to Canadian society."(89)
Canada can potentially accommodate that objective. An indispensable
element of that endeavour is the acknowledgement of aboriginal rights,
and their translation into a modern system which provides for full local
participation in the future of Inuit-occupied areas.
Canada has taken halting steps in that direction. It has declared
a commitment to the settlement of "land" claims, and has extended that
commitment to waters as well. Various cordial speeches have been made
about the desirability of welcoming Inuit into the mainstream of Canadian
life.
However, before a people can be considered a part of the
mainstream, it is essential that the population be considered by
officials as "fellow citizens"(90) instead of adversaries.
89. Letters Patent of Inuit Tapirisat of Canada, objective (f).
90. See Vilhjarmur Stefansson's comments quoted in Margaret
Fairley's SPIRIT OF CANADIAN DEMOCRACY: "We should not
regard the Eskimos as foreigners but as friends. They are
your fellow citizens. Their future is bound up in our
future. If Canada is but a thin southern strip across which
plies a shuttle railway we shall have no remarkable future."
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Although it is arguable that the whole of Canada has been showing
adversarial tendencies of late, this is a pattern which Inuit have
consistently attempted to avoid.
The position of the Canadian government has not been quite as
consistent, and sometimes creates doubts as to whether Inuit are
considered part of the Canadian mosaic or not.(92)
In some areas, however, the mutuality of should be obvious to any
rightminded observer. The issue of Canadian sovereignty in Arctic
waterways is a case in point. If Canada is incapable of asserting
functional jurisdiction over the waterways, then the shortfall in
environmental planning and regulation could have disastrous consequences
on a maritime-oriented population such as the Inuit. The Canadian
national interest is also closely bound to this issue, since the waters
in and around the Arctic Archipelago cover hundreds of thousands of
square miles. The government has therefore been invited to acknowledge
the Inuit presence (and consequent aboriginal rights) as a means of
advancing its self-interest.(93)
91. The invitation to work on mutual concerns is stressed
repeatedly in PARNAGUJUK, Inuit Tapirisat of Canada, 1980.
92. For example, in the 1978 Baker Lake case (footnote 49), the
federal government at first denied the very existence of
aboriginal rights (five years after it had promised to
negotiate them), but at least acknowledged that Inuit lived
in the central Keewatin. The government then amended its
pleadings, and refused to admit that Inuit had lived there.
In the respectful view of this writer, that move was absurd,
and did not inspire confidence in the officials who
authorized it.
93. See proceedings of the Sikumiut Workshop (footnote 15).
>>>>>>>>>>>>END NOTES<<<<<<<<<<<<
Canada is hardly the only country to find itself in such a
situation. Indeed, a multiplicity of countries are having difficulties
sorting out boundaries (particularly at sea); and it is entirely
conceivable that they may invoke aboriginal use (e.g. of a fishing area)
as an argument to support claims to sovereignty.
Aboriginal peoples cannot, however, afford to be used merely as
pawns in a worldwide jockeying for lands and seas. If an aboriginal
presence is to be used as an argument in boundary claims, the country
must equally be prepared to acknowledge that rights are attached to that
presence. A country cannot legitimately play both sides of the fence.
There are signs that Canada will take a coherent position on this
issue, that it will negotiate a system of Inuit participation in plans
affecting the Arctic waters, and that it will invoke this Inuit role as
proof that the Inuit presence (dating back to time immemorial) in these
waters is an ongoing reality, That, in turn, will assist the credibility
of the argument that these waters have been occupied by "Canadian
nationals" since time immemorial, that this occupation is recognized as
having legally binding effects, and that this area an integral historical
part of Canada. If this approach is taken, it could prove a valuable
precedent to aboriginal peoples in a number of other countries.
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